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Ferber v. First Horizon Home Loan Corp.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 2, 2009

EDWARD FERBER, PLAINTIFF,
v.
FIRST HORIZON HOME LOAN CORPORATION; NATIONAL CITY BANK, AND ALL PERSONS UNKNOWN CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF'S TITLE, OR ANY CLOUD UPON PLAINTIFF'S TITLE THERETO, DEFENDANTS.

ORDER AND FINDINGS AND RECOMMENDATIONS

This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule ("Local Rule") 72-302(c)(21). See 28 U.S.C. § 636(b)(1). On May 22, 2009, defendant National City Bank ("National City") removed this action pursuant to 28 U.S.C. § 1441(b). Defendant predicates removal jurisdiction on the action arising under the Federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. Dckt. No. 1.

This court has an independent duty to ascertain its jurisdiction and may remand sua sponte for lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c). "The burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction." Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). Here, plaintiff's complaint alleges violations of various federal statutes; therefore, this court has original jurisdiction over the action pursuant to 28 U.S.C. §§ 1331 and 1367.*fn1

On July 14, 2009, National City filed a motion to dismiss and a motion to strike, and noticed the motions for hearing on September 2, 2009 before the undersigned. Dckt. Nos. 10, 11. Also on July 14, 2009, National City filed a certificate of service, declaring that the motions were served on plaintiff via U.S. Mail on July 14, 2009. Dckt. No. 12.

On August 21, 2009, because plaintiff failed to file an opposition or a statement of non-opposition to the motions, the court continued the hearing on the motions to October 7, 2009, and ordered plaintiff to show cause, on or before September 23, 2009, why sanctions should not be imposed for failure to timely file an opposition or a statement of non-opposition to the pending motions. The court informed plaintiff that a "[f]ailure of plaintiff to file an opposition will be deemed a statement of non-opposition to the pending motions, and may result in a recommendation that this action be dismissed for lack of prosecution." Dckt. No. 13.

A party's failure "to file written opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion and may result in the imposition of sanctions." Local Rule 78-230(m). Failure to comply with any order or with the Local Rules "may be grounds for imposition of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." Local Rule 11-110. The court may dismiss this action with or without prejudice, as appropriate, if a party disobeys an order or the Local Rules. See Ferdik v. Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992) (district court did not abuse discretion in dismissing pro se plaintiff's complaint for failing to obey an order to re-file an amended complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff's failure to comply with local rule regarding notice of change of address affirmed).

The docket reveals that plaintiff has again failed to file an opposition or a statement of non-opposition to the pending motions, and has failed to show cause why sanctions should not be imposed against him, in violation of the court's August 21, 2009 order. Therefore, the court finds that the appropriate sanction is dismissal without prejudice.

Accordingly, it is ORDERED that the October 7, 2009 hearing on National City's motions to dismiss and to strike is vacated.

Further, it is RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b).

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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